State v. Foti , 2020 Ohio 439 ( 2020 )

[Cite as State v. Foti, 2020-Ohio-439.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2019-L-059
- vs - : 2019-L-060
2019-L-061
JOSEPH M. FOTI, SR., : 2019-L-123
Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2017 CR
001306, 2019 CR 000388, 2019 CR 000431, and 2019 CR 000522.
Judgment: Reversed, conviction vacated, and remanded in 2017 CR 001306; modified
in part, affirmed as modified, in 2019 CR 000388, 2019 CR 000431, and 2019 CR
000522.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Joseph Foti (“Mr. Foti”), appeals the judgments of the Lake
County Court of Common Pleas in four cases sentencing him to the following: (1)
termination of community control sanctions and prison terms of one year each for having
weapons while under disability, aggravated possession of drugs, and possession of
cocaine, to be served consecutively (case no. 2017 CR 001306); (2) prison terms of one
year each for attempted having weapons while under disability and aggravated
possession of drugs, to be served concurrently (case no. 2019 CR 000388); (3) a prison
term of one year for tampering with records (case no. 2019 CR 000431); and (4) a prison
term of one year for attempted tampering with evidence (case no. 2019 CR 000522), with
the sentences imposed in each case to be served consecutively, for a total prison term of
six years.
{¶2} Mr. Foti contends that his sentences are contrary to law. First, he argues
the trial court’s original sentence of community control sanctions in case no. 2017 CR
001306 violated Ohio’s prohibition against “sentence packaging,” rendering his sentence
for violating community control sanctions in that case void. Appellee, the state of Ohio,
concedes this error. Second, he argues the trial court failed to consider the third purpose
of felony sentencing under R.C. 2929.11(A) regarding rehabilitation. Finally, he argues
the trial court failed to consider applicable mitigation factors under R.C. 2929.12(C)(4).
{¶3} After a careful review of the record and pertinent law, we find as follows:
{¶4} In case no. 2017 CR 001306, the trial court’s original sentence of
community control sanctions constitutes an impermissible sentencing package, rendering
Mr. Foti’s sentence for violating community control sanctions void. In case nos. 2019 CR
000388, 2019 CR 000431, and 2019 CR 000522, the record demonstrates that the trial
court was “guided” by the third purpose of felony sentencing regarding rehabilitation. In
addition, the record demonstrates the trial court considered mitigation factors under R.C.
2929.12(C)(4). However, because Mr. Foti’s sentence in case no. 2017 CR 001306 is
void, his sentences in case nos. 2019 CR 000388, 2019 CR 000431, and 2019 CR
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000522 must be modified since the trial court ordered the prison terms in those cases to
be served consecutively to the prison term imposed in case no. 2017 CR 001306.
{¶5} Thus, in case no. 2017 CR 001306, we reverse the trial court’s judgment,
vacate Mr. Foti's convictions for violating his community control sanctions, and remand
for a de novo sentencing hearing for the underlying offenses to which Mr. Foti pleaded
guilty, to wit: Count 1 (having weapons while under disability), Count 7 (aggravated
possession of drugs), and Count 8 (possession of cocaine), all with forfeiture
specifications.
{¶6} In case nos. 2019 CR 000388, 2019 CR 000431, and 2019 CR 000522, we
modify the trial court’s judgments, in part, to eliminate the order that the prison terms
imposed in those cases run consecutively to the prison term imposed in case no. 2017
CR 001306 and affirm, as modified.
Substantive and Procedural History
{¶7} As indicated, this consolidated appeal involves sentences imposed in four
cases.
Case No. 2017 CR 001306 – Violation of Community Control
{¶8} In March 2018, the Lake County Grand Jury indicted Mr. Foti on 11 counts
in case no. 2017 CR 001306. In June 2018, he entered written and oral pleas of guilty to
three counts: (1) Count 1, having weapons while under disability, a felony of the third
degree, in violation of R.C. 2923.13(A)(2), (2) Count 7, aggravated possession of drugs,
a felony of the fifth degree, in violation of R.C. 2925.11(A), and (3) Count 8, possession
of cocaine, a felony of the fifth degree, in violation of R.C. 2925.11(A), all with forfeiture
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specifications. The trial court accepted his guilty pleas and dismissed the remaining
counts.
{¶9} On October 4, 2018, the trial court sentenced Mr. Foti to one overarching
two-year term of community control. The trial court memorialized the sentence in a
judgment entry dated October 17, 2018. Mr. Foti did not file a direct appeal of his
sentence.
{¶10} In December 2018, the state filed a motion to terminate Mr. Foti’s
community control sanctions, the grounds of which related to his alleged offenses in case
no. 2019 CR 000388 described below. In May 2019, Mr. Foti entered written and oral
pleas of guilty to these violations.
Case No. 2019 CR 000388 – Attempted Weapons Under Disability & Drugs
{¶11} In November 2018, the Lake County Narcotics Agency stopped Mr. Foti’s
vehicle as a part of an investigation of several other individuals. Mr. Foti had 0.67 grams
of methamphetamine in his possession, and a subsequent search of his residence led to
the discovery of a MAG Tactical Systems Model MG-G4 semi-automatic rifle with
ammunition and a magazine.
{¶12} In May 2019, Mr. Foti was charged by way of information with two counts in
case no. 2019 CR 000388: (1) attempted having weapons while under disability, a felony
of the fourth degree, in violation of R.C. 2923.02, and (2) aggravated possession of drugs,
a felony of the fifth degree, in violation of R.C. 2925.11, both with forfeiture specifications.
Shortly thereafter, Mr. Foti entered written and oral pleas of guilty to both charges.
Case No. 2019 CR 000431 - Tampering with Records
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{¶13} In April 2019, Mr. Foti submitted a letter to the probation department
purportedly from Hillcrest Hospital containing a doctor’s electronic signature as a medical
excuse for not reporting. Subsequent investigation determined that Mr. Foti had falsified
the document.
{¶14} In May 2019, the Lake County Grand Jury indicted Mr. Foti on five counts
in case no. 2019 CR 000431. Shortly thereafter, Mr. Foti entered a written and oral plea
of guilty to Count 4, tampering with records, a felony of the third degree, in violation of
R.C. 2913.42(A)(2). The trial court accepted his guilty plea and dismissed the remaining
counts.
Case No. 2019 CR 000522 – Attempted Tampering with Evidence
{¶15} In February 2018, Mr. Foti assisted in having an ATV painted to make it
unrecognizable after another individual purchased it from a third party using “movie
money.” On June 5, 2019, Mr. Foti was charged by way of information in case no. 2019
CR 000522 for attempted tampering with evidence, a felony of the fourth degree, in
violation of R.C. 2923.02(A). On the same day, Mr. Foti entered a written and oral plea
of guilty to the charge.
Combined Sentencing Hearing for All Cases
{¶16} On June 5, 2019, the trial court held a combined sentencing hearing relating
to all of Mr. Foti’s guilty pleas.
{¶17} Mr. Foti’s counsel requested sentences of community control sanctions to
permit Mr. Foti to obtain treatment, stating that Mr. Foti’s offenses were related to his drug
use and mental health issues. Alternatively, he requested a prison term that was not
significantly more than three years.
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{¶18} Mr. Foti spoke on his own behalf, admitting that he had a drug problem and
indicating he had spoken to an available treatment center.
{¶19} The state requested sentences of a year in prison each in case nos. 2019
CR 000388, 2019 CR 000431, and 2019 CR 000522 and the remaining time in case no.
2017 CR 001306, less applicable time served, to run consecutively. The state cited Mr.
Foti’s lengthy criminal history, the commission of several offenses while on community
control or bond, that case no. 2019 CR 000522 involved organized criminal activity, and
that multiple offenses were committed as one or more courses of conduct.
{¶20} The trial court stated that it had reviewed the presentence investigation
report and the purposes and principles of felony sentencing. It recited two of the purposes
set forth in R.C. 2929.11(A), although it did not reference the third purpose, i.e., “the
promotion of the effective rehabilitation of the offender,” which the General Assembly
added to the statute effective October 29, 2018.
{¶21} The trial court also stated that it considered (1) the need for incapacitation,
deterrence, and rehabilitation, (2) the fact that “the sentence shall be commensurate with
and not demeaning to the seriousness of the offender’s conduct, the impact on the victim
as well as consistency,” and (3) the seriousness and recidivism factors in R.C. 2929.12.
{¶22} With respect to the “more serious” factors, the trial court found that in case
no. 2019 CR 000522, Mr. Foti acted as part of an organized criminal activity. The trial
court stated it did not find any “less serious” factors.
{¶23} With respect to factors indicating recidivism is more likely, the trial court
found Mr. Foti committed some of the offenses while he was on community control in
case no. 2017 CR 001306. The trial court also found that Mr. Foti has a history of felony
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convictions, including (1) trafficking in marijuana, a fourth-degree felony, in 1996 (2) drug
possession, a fifth-degree felony, in 2002, which resulted in a prison sentence, (3) drug
possession, a fifth-degree felony, in 2006, resulting in another prison sentence, (4)
kidnapping, a second-degree felony, in 2006 (5) attempted robbery, a fourth-degree
felony, and drug possession, a fifth-degree felony, in 2014, after which he was placed on
probation, and (7) the underlying offenses in case no. 2017 CR 001306, as well as a
number of misdemeanor convictions. The trial court stated it did not find any factors
indicating recidivism is less likely.
{¶24} The trial court further found that Mr. Foti had not previously responded
favorably to community control, noting probation violations in 1999, 2002, 2005, 2016,
and in case no. 2017 CR 001306. The trial court stated Mr. Foti had not obtained
treatment for substance abuse despite many opportunities to do so.
{¶25} With respect to factors for sentencing for fourth- and fifth-degree felonies
under R.C. 2929.13, the trial court found two previous prison sentences and Mr. Foti’s
commission of some of the offenses while on community control.
{¶26} Finally, the trial court found Mr. Foti was not amendable to community
control. The trial court stated that Mr. Foti has had plenty of chances, noting that it had
put Mr. Foti on probation for a second time in case no. 2017 CR 001306 and that Mr. Foti
“didn’t do what he had the opportunity to do.”
{¶27} The trial court imposed the following sentences: (1) in case no. 2017 CR
001306, termination of community control sanctions and prison terms of one year each
on Counts 1, 7, and 8, to be served consecutively, with credit for 74 days; (2) in case no.
2019 CR 000388, prison terms of one year each on Counts 1 and 2, to be served
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concurrently, with credit for 20 days; (3) in case no. 2019 CR 000431, a prison term of
one year with credit for 27 days; and (4) in case no. 2019 CR 000522, a prison term of
one year with credit for one day.
{¶28} The trial court ordered the sentences imposed in each case to be served
consecutively, for a total prison term of six years. It found consecutive sentences imposed
in case no. 2017 CR 001306 and in the aggregate (1) are necessary to protect the public
from future crime by Mr. Foti and to punish him, and (2) are not disproportionate to the
serious of Mr. Foti’s conduct and the danger he poses to the public. The trial court further
found that Mr. Foti’s history of criminal conduct demonstrates that consecutive sentences
are necessary to protect the public from future crime by him.
{¶29} On June 10, 2019, the trial court issued separate sentencing entries in each
case. Mr. Foti filed separate notices of appeal relating to each sentencing entry, which
we consolidated.
{¶30} Mr. Foti raises the following sole assignment of error:
{¶31} “The trial court erred by sentencing the defendant-appellant to consecutive
prison sentences totaling six years, as that sentence is contrary to law.”
{¶32} Mr. Foti raises the following issues for review under his sole assignment of
error:
{¶33} “[1.] In case no. 2017 CR 001306, the defendant-appellant’s underlying,
over-arching sentence of a two-year term of community control was in violation of Ohio’s
prohibition against sentence-packaging, and thus the trial court’s subsequent sentence
of a three-year prison term for violations of community control is void.
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{¶34} “[2.] The trial court erred when it imposed a six-year consecutive prison term
after it failed to consider all of the enumerated purposes of felony sentencing pursuant to
R.C. 2929.11 and thus, the sentence is contrary to law.
{¶35} “[3.] The trial erred when it imposed a six-year prison term where its findings
under R.C. 2929.12 were not supported by the record; thus, the sentence was contrary
to law.”
Standard of Review
{¶36} The standard of review for felony sentences is governed by R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶16. That
provision states:
{¶37} “The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶38} “The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court's standard of review is not
whether the sentencing court abused its discretion. The appellate court may take any
action authorized by this division if it clearly and convincingly finds either of the following:
{¶39} “(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶40} “(b) That the sentence is otherwise contrary to law.”
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{¶41} A sentence is contrary to law if (1) the sentence falls outside the statutory
range for the particular degree of offense, or (2) the trial court failed to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing
factors in R.C. 2929.12. (Citations omitted.) State v. Wilson, 11th Dist. Lake No. 2017-
L-028, 2017-Ohio-7127, ¶18.
{¶42} Appellate courts “may vacate or modify any sentence that is not clearly and
convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.” Marcum at ¶23.
{¶43} Clear and convincing evidence is that measure or degree of proof which is
more than a mere “preponderance of the evidence,” but not to the extent of such certainty
as is required “beyond a reasonable doubt” in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established. Marcum at ¶22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
{¶44} We have recognized that the “clear and convincing standard” is “highly
“deferential,” as it “is written in the negative. It does not say that the trial judge must have
clear and convincing evidence to support its findings. Instead, it is the court of appeals
that must clearly and convincingly find that the record does not support the court's
findings.” State v. Taeusch, 11th Dist. Lake No. 2016-L-047, 2017-Ohio-1105, ¶13,
quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶21.
Sentence Packaging
{¶45} In his first issue for review, Mr. Foti argues his original sentence of two years
of community control in case no. 2017 CR 001306 violated Ohio’s prohibition against
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sentence packaging pursuant to State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245.
Thus, he argues his subsequent sentence of three years in prison for violations of his
community control is void. The state concedes error and requests a remand for a de
novo sentencing hearing.
{¶46} In Saxon, the Supreme Court of Ohio held that the Ohio felony sentencing
statutes do not allow for “sentencing packages,” i.e., the imposition of one overarching
sentence for multiple offenses. Id. at ¶8. Judges must consider each offense separately
and impose a separate sentence for each offense. Id. at ¶ 9. “[A] sentence is the sanction
or combination of sanctions imposed for each separate, individual offense.” Id. at
paragraph one of the syllabus. As community control sanctions are criminal penalties
subject to Ohio's felony sentencing statutes, pursuant to R.C. 2929.15, they must also be
imposed individually for each offense. State v. Edwards, 11th Dist. Geauga No. 2017-G-
0122, 2018-Ohio-2462, ¶17, and State v. Armstrong, 11th Dist. Trumbull No. 2015-T-
0131, 2017-Ohio-8801, ¶ 27, citing State v. Williams, 3d Dist. Hancock No. 5-10-02, 2011-
Ohio-995, ¶21. Therefore, when a trial court imposes community control sanctions on
multiple charges in a “sentencing package” rather than individually, the sentence is
contrary to law. State v. Crenshaw, 11th Dist. Lake No. 2018-L-121, 2019-Ohio-3840,
¶18.
{¶47} No court has the authority to impose a sentence that is contrary to law.
State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶22 (“Williams II”), quoting State
v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶23. Any attempt by a court to disregard
statutory requirements when imposing a sentence renders the attempted sentence a
nullity or void. State v. Beasley, 14 Ohio St.3d 74, 75 (1984). Void sentences may be
11
reviewed and vacated at any time, either on direct appeal or by collateral attack. Williams
II at ¶22-23, citing Fischer at ¶30.
{¶48} In case no. 2017 CR 001306, the trial court originally imposed one
overarching two-year sentence of community control sanctions following Mr. Foti’s guilty
pleas to Count 1 (having weapons while under disability), Count 7 (aggravated
possession of drugs), and Count 8 (possession of cocaine), all with forfeiture
specifications. That sentence constitutes an impermissible sentencing package. See
Edwards at ¶18. Therefore, the October 17, 2018 judgment of sentence is void, and the
trial court could not have found Mr. Foti in violation of it. See Crenshaw at ¶20.
Accordingly, the June 10, 2019 judgment of sentence in case no. 2017 CR 001306 is also
void. See id.{¶49} Based on the foregoing, we reverse the trial court’s judgment in case no.
2017 CR 001306 and vacate Mr. Foti's conviction for violating his community control
sanctions. Case no. 2017 CR 001306 is remanded for a de novo sentencing hearing for
the underlying offenses to which Mr. Foti pleaded guilty, to wit: Count 1 (having weapons
while under disability), Count 7 (aggravated possession of drugs), and Count 8
(possession of cocaine), all with forfeiture specifications.
State v. Gwynne
{¶50} In his second and third issues for review, Mr. Foti sets forth arguments
involving R.C. 2929.11 and R.C. 2929.12 to support his assertion that his “six-year
consecutive sentence” is “contrary to law.”
{¶51} In State v. Gwynne, Slip Opinion No. 2019-Ohio-4761, a plurality of the
Supreme Court of Ohio held that an appellate court may only review individual felony
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sentences under R.C. 2929.11 and R.C. 2929.12, while consecutive sentences are
analyzed for compliance with R.C. 2929.14(C)(4). See id. at ¶16-18. Thus, we will review
Mr. Foti’s arguments under R.C. 2929.11 and R.C. 2929.12 in relation to his individual
felony sentences.
R.C. 2929.11(A) - Rehabilitation of the Offender
{¶52} In his second issue for review, Mr. Foti argues that his felony sentences are
contrary to law because the trial court failed to consider the third purpose of felony
sentencing set forth in R.C. 2929.11(A), which is “to promote the effective rehabilitation
of the offender.”
{¶53} R.C. 2929.11 applies as a general judicial guide for every sentencing. State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶36. R.C. 2929.11(A) states that the court
“shall be guided by the overriding purposes of felony sentencing,” which are “[1] to protect
the public from future crime by the offender and others, [2] to punish the offender, and [3]
to promote the effective rehabilitation of the offender using the minimum sanctions that
the court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources.” As Mr. Foti correctly notes, the General
Assembly added the third purpose pursuant to S.B. 66, which became effective on
October 29, 2018, prior to Mr. Foti’s sentencing hearing held on June 5, 2019.
{¶54} To “achieve those purposes,” R.C. 2929.11(A) states that the court “shall
consider the need for incapacitating the offender, deterring the offender and others from
future crime, rehabilitating the offender, and making restitution to the victim of the offense,
the public, or both.”
{¶55} At the sentencing hearing, the trial court stated, in relevant part:
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{¶56} “I considered 2929.12 [sic]1 which is the purposes and principles of felony
sentencing. The overriding purpose being to punish the offender and protect the public
from future crime by the offender and others using the minimum sanction that I can
determine are necessary to accomplish for its purposes. Considered the need for
incapacitation, deterrence and rehabilitation.”
{¶57} In its sentencing entries, the trial court stated that it “considered * * * the
principles and purposes of sentencing in R.C. 2929.11.”
{¶58} Mr. Foti argues that the record demonstrates that the trial court failed to
consider the third purpose of sentencing.
{¶59} We recently addressed this argument in State v. Anthony, 11th Dist. Lake
No. 2019-L-045, 2019-Ohio-5410, where we noted that R.C. 2929.11(A) requires the trial
court to “be guided by” the “purposes” of felony sentencing. Id. at ¶77. It does not require
the court to “consider” them. Id. By contrast, R.C. 2929.11(A) requires the trial court to
“consider” the “principles” of felony sentencing to achieve the “purposes.” Id. The trial
court satisfies its obligation to consider the statutory principles by stating it considered
them. Id., citing State v. Dawson, 11th Dist. Lake No. 2015-L-109, 2016-Ohio-2800, ¶15.
{¶60} As in Anthony, since the trial court expressly stated at the sentencing
hearing that it considered the principles of sentencing and recited the applicable
principles, including rehabilitation, the record does not clearly and convincingly show the
trial court was not “guided” by the third purpose of sentencing, which is “to promote the
effective rehabilitation of the offender.” See id. at ¶78; State v. Banas, 11th Dist. Lake
No. 2019-L-049, 2019-Ohio-5053, ¶14 (defendant did not establish the trial court failed to
1. Although the transcript reflects the trial court cited R.C. 2929.12, the context demonstrates the trial court
was referencing R.C. 2929.11.
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consider the purposes of felony sentencing where it stated it considered the need for
rehabilitation).
{¶61} In addition, as in Anthony, the trial court’s sentencing entries expressly state
it “considered * * * the purposes and principles of sentencing set forth in R.C. 2929.11.”
See id. at ¶79. The inclusion of language in a sentencing entry affirmatively stating that
the court considered the purposes of sentencing set forth in R.C. 2929.11 defeats a claim
that the trial court failed to consider those statutory guidelines. Id., citing State v.
Frederick, 10th Dist. Franklin No. 13AP-630, 2014-Ohio-1960, ¶14.
{¶62} Further, the trial court's statements at the sentencing hearing demonstrate
that it considered rehabilitation:
{¶63} “By your own, you mentioned these offenses are related to alcohol and drug
abuse which he's not gotten treatment as well as he had many opportunities to do so.
{¶64} “* * *
{¶65} “And some of these offenses and you're here for sentencing were
committed while you were on community control so and you've had plenty of chances
throughout your life. I think you've had, the chance you got in '18 was the second chance
you got since your second prison number. So after being on probation once before you
got out of prison, I put you on probation for a second time, you didn't do what you had the
opportunity to do. There is no way you can make it so that's why you're here.
{¶66} “It's more than just violations this is crimes so as I told [defense counsel]
none of this is impulsive, it's based on facts and circumstances created by [Mr. Foti] in
'17 so you're not amenable to community control at this point.”
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{¶67} Thus, as in Anthony, the trial court's statements demonstrate that it
considered rehabilitation. See id. at ¶83, citing State v. Kincade, 3d Dist. Wyandot No.
16-09-20, 2010-Ohio-1497, ¶10 (the trial court’s statements regarding unsuccessful past
attempts to rehabilitate the defendant showed consideration of rehabilitation).
{¶68} Finally, as we recognized in Anthony, incarceration is not inconsistent with
rehabilitation. See id. at ¶85, citing State v. Barrett, 8th Dist. Cuyahoga No. 97614, 2012-
Ohio-3948, ¶31 (holding that an offender's prospects for rehabilitation would not
necessarily rule out a prison term). A trial court cannot “require” rehabilitation. Id., citing
State v. Gilmer, 6th Dist. Ottawa No. OT-05-028, 2005-Ohio-6435, ¶7. It is up to a
defendant to acknowledge that he needs to rehabilitate himself and take advantage of
opportunities that might steer him in that direction. Id. Mr. Foti’s expressed desired to
finally obtain treatment is certainly commendable. Rehabilitation is a goal he may work
toward while serving his sentences.
{¶69} Accordingly, Mr. Foti has not established by clear and convincing evidence
that the trial court was not guided by the purpose of rehabilitation in imposing his felony
sentences.
R.C. 2929.12(C)(4) – Mitigation of Conduct
{¶70} In his third and final issue for review, Mr. Foti contends that the trial court’s
findings under R.C. 2929.12 were not supported by the record, making his sentences
contrary to law.
{¶71} As an initial matter, we note that determining whether a trial court’s findings
under R.C. 2929.12 are supported by the record and whether a defendant’s sentence is
contrary to law are two separate concepts. See Marcum, supra, at ¶23 and R.C.
16
2953.08(G)(2)(b). Mr. Foti actually argues that the trial court failed to consider valid
mitigating factors pursuant to R.C. 2929.12(C)(4). Thus, our analysis involves whether
Mr. Foti has established that his sentences are clearly and convincingly contrary to law.
See Wilson, supra, at ¶18.
{¶72} R.C. 2929.12(A) grants the sentencing judge discretion “to determine the
most effective way to comply with the purposes and principles of sentencing.” Foster,
supra, at ¶37. In exercising that discretion, the court shall consider, along with any other
“relevant” factors, the seriousness factors set forth in divisions (B) and (C) and the
recidivism factors in divisions (D) and (E) of R.C. 2929.12. Id. These statutory sections
provide a nonexclusive list for the court to consider. Id.
{¶73} Further, the trial court is not obligated to give any particular weight or
consideration to any sentencing factor. State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-
6255, ¶34 (11th Dist.). Provided that the sentencing court duly considers the appropriate
sentencing factors, it has full discretion to impose a sentence within the statutory range.
Id.{¶74} In this case, the trial court stated that there were no applicable “less serious”
factors under R.C. 2929.12. According to Mr. Foti, this establishes that the trial court did
not consider R.C. 2929.12(C)(4), i.e., whether “[t]here are substantial grounds to mitigate
the offender’s conduct, although the grounds are not enough to constitute a defense.”
Mr. Foti contends that these grounds include (1) his drug addiction/impairment, (2) his
mental health issues, and (3) that none of his offenses involved violence.
{¶75} Mr. Foti asserts that drug addiction is a valid mitigating factor under Ohio
law. However, the cases Mr. Foti cites in support of this proposition involved mitigating
17
factors under R.C. 2929.04(B) in consideration of a death sentence for aggravated
murder, not “substantial grounds to mitigate the offender’s conduct” under R.C.
2929.12(C)(4). See State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, ¶102; State
v. Hicks, 43 Ohio St.3d 72, 80 (1989). By contrast, this court has stated that substance
abuse without completion of any treatment program does not constitute a substantial
mitigating factor under R.C. 2929.12(C)(4). See State v. Stewart, 11th Dist. Lake No.
2008-L-112, 2009-Ohio-921, ¶33.
{¶76} In any event, the trial court stated at the sentencing hearing and in its
sentencing entries that it considered the seriousness and recidivism factors in R.C.
2929.12, which satisfies its statutory duty. See Dawson, supra, at ¶15.
{¶77} In addition, the trial court stated in its judgment entries that it considered the
record, oral statements, and any presentence report and/or drug and alcohol evaluation.
At the sentencing hearing, the trial court expressly addressed Mr. Foti’s claim of addiction,
finding that his failure to obtain treatment despite many opportunities was an aggravating
factor. Therefore, the trial court expressly considered Mr. Foti’s claim of addiction. See
State v. Nelson, 11th Dist. Ashtabula No. 2001-A-0076, 2002-Ohio-6701, ¶24.
{¶78} Although the trial court did not expressly address Mr. Foti’s mental illness
or lack of violence, we presume they were considered. See State v. Finch, 11th Dist.
Portage No. 2013-P-0046, 2014-Ohio-1680, ¶16. The trial court apparently did not afford
them any weight. See State v. Schmidt, 11th Dist. Lake No. 2018-L-068, 2019-Ohio-
3990, ¶41. Simply because a trial court does not find the factors identified by a defendant
to militate in favor of a less severe sentence does not imply the sentence is contrary to
law. State v. Miller, 11th Dist. Lake No. 2018-L-133, 2019-Ohio-2290, ¶25.
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{¶79} Accordingly, Mr. Foti has not established by clear and convincing evidence
that the trial court failed to consider R.C. 2929.12(C)(4).
Modification of Sentences
{¶80} Because Mr. Foti’s sentence in case no. 2017 CR 001306 is void, his
sentences in case nos. 2019 CR 000388, 2019 CR 000431, and 2019 CR 000522 must
be modified since the trial court ordered the prison terms imposed in those cases be
served consecutively to the prison term imposed in case no. 2017 CR 001306. See State
v. Hernandez-Torres, 11th Dist. Lake Nos. 2019-L-028 & 2019-L-029, 2019-Ohio-5310,
¶47. A trial court has no authority to order a sentence to be served consecutively to a
future sentence not yet imposed. Olmsted Falls v. Clifford, 8th Dist. Cuyahoga No.
100375, 2014-Ohio-2397, ¶12, citing State v. White, 18 Ohio St.3d 340, 342 (1985).
Thus, we modify Mr. Foti’s sentences in case nos. 2019 CR 000388, 2019 CR 000431,
and 2019 CR 000522, in part, to eliminate the order that the prison terms imposed in
those cases run consecutively to the prison term imposed in case no. 2017 CR 001306.
{¶81} Mr. Foti’s sole assignment of error has merit in part.
{¶82} Based on the foregoing, the trial court’s judgment in case no. 2017 CR
001306 is reversed, and Mr. Foti's convictions for violating his community control
sanctions are hereby vacated. Case no. 2017 CR 001306 is remanded for a de novo
sentencing hearing for the underlying offenses to which Mr. Foti pleaded guilty, to wit:
Count 1 (having weapons while under disability), Count 7 (aggravated possession of
drugs), and Count 8 (possession of cocaine), all with forfeiture specifications.
{¶83} The trial court’s judgments in case nos. 2019 CR 000388, 2019 CR 000431,
and 2019 CR 000522 are modified, in part, to eliminate the order that the prison terms
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imposed in those cases run consecutively to the prison term imposed in case no. 2017
CR 001306 and are affirmed, as modified.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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